I'm a privacy pragmatist, writing about the intersection of law, technology, social media and our personal information. If you have story ideas or tips, e-mail me at khill@forbes.com. PGP key here.
These days, I'm a senior online editor at Forbes. I was previously an editor at Above the Law, a legal blog, relying on the legal knowledge gained from two years working for corporate law firm Covington & Burling -- a Cliff's Notes version of law school.
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How Google Can 'Forget' People Without The Rest Of Us Forgetting It Happened

This week, Europe decided that its citizens should have more control over what GoogleGoogle and other search engines reveal about them. The European version of the Supreme Court decided in favor of a Spanish man who didn’t want Google linking to notices about him selling real estate holdings in the late 90s to pay his debts. The Court was sympathetic because the information, though old and “no longer relevant,” still appeared at the top of his search results. Now Google has to remove those links, and comply with the man’s “right to be forgotten.” Other Europeans have the same right now as well. Since the decision came down, Google has received removal requests from a person convicted of possession of child porn who wants news articles about that conviction removed; a doctor who wants reviews of her practice removed; and a former politician running again for office who wants links about her past time in office removed from search. If it weren’t someone based in Europe, I’d think that last one was Rick Santorum.

There is a difficult balance here between people’s desire to control their reputations and the rest of the humanity’s right to know potentially disturbing or embarrassing facts about them. The court actually recognized that in its decision and left wiggle room for the search engines that will inevitably be hit with these requests.

“The Court holds that a fair balance should be sought in particular between that interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court observes… that, whilst it is true that the rights [of the person who wants their search results scrubbed] override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life,” says a release from the Court of Justice of the European Union.

Translation: In some cases, people — especially public figures — shouldn’t have the right to be forgotten. Thus search engines have the right to decide the merits of a request and deny it, in which case the reputation-cleanser can sue (like the Spanish dude did) or file a request with their local data protection authority — a thing European countries have that we don’t have in the U.S. “In Hamburg, privacy regulators normally received about 100 requests to suppress search results every year—but received eight in just the day following the decision this Tuesday,” reports the WSJ.

For example, when you search for this white supremacy group in Germany, the links to it have been removed, but Google acknowledges that “we have removed 2 result(s) from this page” and links to the complaint that resulted in the removal, which has been posted by Chilling Effects, a group that tracks censorship on the Web.

This notice currently appears at the bottom of the page. It would be far more effective at drawing attention to the issue if it were at the top.

In that way, people who request information be removed get what they want, but they won’t be able to let the “forgetting” be forgotten.

Wendy Seltzer, founder of the Chilling Effects Project and a fellow at Harvard’s Berkman Center, is unsure whether European courts would consider pointing out the missing results equivalent to simply listing them.

“The target of the ruling is removing the connection between a person and truthful information about the person, so this might be considered incompatible with that,” she says. But if search engines decided they could highlight the removals, Chilling Effects would be happy to list them. “The question has come up for a while of why we make these take-down requests available when people specifically want it taken down. What we want to make available is the metadata about what has disappeared, which can help determine whether the laws are working and inform you about what are you not seeing on the blogs and search engines because they’re chilled into removing it. I think it would be a loss if we couldn’t make this information available about the right to be forgotten.”

“This is a disappointing ruling for search engines and online publishers in general,” says Google in a statement. “The ruling has significant implications for how we handle takedown requests. This is logistically complicated – not least because of the many languages involved and the need for careful review. As soon as we have thought through exactly how this will work, which may take several weeks, we will let our users know.”

“There’s great irony in the Spanish man who made this complaint,” says Wendy Seltzer. “He will be far better known for making the complaint than known for his bad debts beforehand.”

He took one for the right-to-be-forgotten team.

For more on this, read Zeynep Tufekci: “The current legal decision may well be overdone or misplaced, but the question of who holds the keys to our collective memory is one that deserves a discussion, and not just left to a few companies.”

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How is it that Forbes immediately misses the point of this court case in less than the first 50 words of this article. It has nothing to do with google losing control over past information of humans that may prove to be embarrassing to them. It is about the rights of humans to control their own lives rather than be categorized, stigmatized for life by an entity (Google for one) for no benefit to the public and only for the benefit of themselves. Lets say it is something embarrassing. When you were 1Shamir for some reason your doctor had records that you were a bed wetter and somehow this made it into a public record in your town long that many decades ago. Would you want your name to pop up everytime ‘bedwetter’ was googled…. or get barraged on a daily basis with emails on incontinence products. methinks not. Get a grip America, and Get a grip Forbes. There is information about you that is public and necessary, if you will….there is however an even more vast amount more that is not necessary to be public for the public good and instead has been massively exploited for profit by the Googles of the world (thank Odin there is only 1)

I am less concerned with the administrative burden on Google (which is not insignificant) than I am with the breathtaking scope of this decision. The decision requires deletion of personal data that is “inadequate, irrelevant, or no longer relevant” (whatever that means) and “excessive or not kept up to date.” These are such ambiguous and broad phrases that they could arguably be applied to almost anything. Equally concerning is the potentially broad jurisdictional reach of the ruling in terms of application to non-EU companies who operate through an EU subsidiary and target EU citizens with advertising. The EU Court ignored the opinion of its Advocate General recommending that Google should not be required to remove links based on data protection principles and that the free speech considerations were substantial. Your practical proposal on how Google should comply makes sense, but Google should never have to face this situation in the first place. This ruling is not enabling the so-called “right to be forgotten” (because the information is never truly removed from the web), but encouraging revisionist history. The free flow of information and the free marketplace of ideas as envisioned by Justices Holmes and Douglas are the big losers here.

“There is a difficult balance here between people’s desire to control their reputations and the rest of the humanity’s right to know potentially disturbing or embarrassing facts about them.”

Not really. There are things people can do to protect their reputations:

1. Carefully consider what they share, both in the internet and elsewhere. 2. Read the Terms of Service (or a summary like http://tosdr.org/) to see what will happen the info you post. 3. If information is old and wrong/misleading, politely ask the publisher (not the search engine) if they’ll consider removing it. 4. If information is illegally disclosed (e.g. a hospital posts your patient file online in violation of both HIPAA and their patient privacy policy, someone violates a confidentiality agreement), you can take legal action against the person who actually illegally disclosed it.

But why should people have to remove truthful information (or even information they genuinely believe is truthful) just because it’s old? Freedom of speech is clearly more important here.

Bear in mind that to post something about you, someone has to learn about it somehow. In some cases, this is straightforward (e.g. they witnessed something you did). But in other cases, simply being more reserved (as I mentioned in #1) online *and* offline can reduce the random information about you in circulation.

Finally, sometimes the information was simply illegal to post; I gave a couple examples of that.

However, exceptions aside, in general third parties have (and must have) the right to say whatever they choose. After all, we are all third parties to someone.

“Forgotten” implies a passage of time. One missing point here is that although the current complainers would like to have historical information removed from search results, the next logical progression will be that the age of the information posted is not so relevant as the type of information. So if the court stays true to form it must then prevent all such information from being posted to begin with. Then it will be crystal clear that this decision is about limiting freedom of speech and not simply cleaning up someone’s reputation after the fact.

I think it’s a first attempt at regulating the field. As such, it can be criticized, and the Court’s decision may be overdone, but there’s a growing feeling, here in Europe, that things can’t simply just go on as before; that search engines and Internet companies in general must start to abide to the rules that all the others follow (think of tax evasion, or rather, elusion) and must take into account the impact they have on the world outside the pixels.

Kashmir is absolutely right — it’s a difficult balance. Should the individual have the right right to privacy even if that means re-writing or redacting records that are true? What about governments? Personally, I’d rather live in a world where all the facts are out in the open, not selectively edited out of concern over whom or what they might offend. We’ve all taken a few hits in our time. Sometimes ya gotta lump it.

So Google complains about changing data! That is their job description; Rank search results for pay/ad fee. The real rankle is Google has to perform work for no pay under court order. But why stop there? Why not delete the data completely across the net? Because Google wants pay to do that. Google is capitalistically entrenched. Not volunteer social workers. How about an ad in your face with those fries?